Cyanamid Canada Inc. v. Canada ( Minister of National Health and Welfare )
A-294-92
Stone J.A.
23/10/92
19 pp.
Appeals from orders of A.C.J. dismissing review proceedings under Access to Information Act, s. 44 (Cyanamid Canada Inc. v. Canada (Minister of National Health and Welfare) (1992), 52 F.T.R. 22 (F.C.T.D.)) -- Appellant manufacturer of drug products Minocin and Methotrexate -- Huge investment of time and money -- Required to provide Health Protection Branch (HPB), Department of National Health and Welfare with confidential information (product monographs, related information) to obtain approval for public distribution -- Product monograph, setting out information required for safe and effective use of drug, must be released by manufacturer at request of health care professional once notice of compliance issued -- Appellant always treating required information as confidential -- Appellant (1) submitting respondent failing to comply with notice requirements in Act; (2) submitting having insufficient proof of requesters' qualifications to request and receive information; (3) argues decision to grant or deny access improperly delegated to departmental officials; (4) appeals from orders-Appeals dismissed -- (1) Statutory notice requirements not complied with -- Appellant contending mandatory duty to give notice within stipulated time limits because of "shall" in relevant provisions, and failure to do so rendering decisions void -- Also contending statute should be strictly construed as interferes with right of confidentiality in information furnished -- No general rule "shall" mandatory -- When provision relating to performance of public duty, and case such that to hold null and void acts done in neglect of duty would work serious general inconvenience, or injustice to persons having no control over those entrusted with duty and not promoting main object of Act, provision interpreted as directory: Montreal Street Railway Company v. Normandin, [1917] A.C. 170 (P.C.) -- Statutory notice provisions involving performance of public duties by respondent -- Act not providing penalty for failure to give notices in time -- Notice provisions to provide defined time frame within which request for information should be processed, and to allow requester to file complaint with Information Commissioner -- To interpret notice provisions as mandatory would result in denial of release of information to requesters and would only cause filing of second request and timely compliance -- Not promoting main object of provisions -- Requesters would be penalized by respondent's error even though not objecting to own late notices -- (2) As to requesters' qualifications, Act gives right of access to every Canadian citizen and permanent resident -- Access to Information Act Extension Order, No. 1 extending right to all individuals and corporations present in Canada -- Access Coordinator in HPB satisfied requesters qualified -- All requesters having Canadian address and telephone -- Neither Act nor Regulations stipulating nature or sufficiency of proof required to show requester's qualifications -- Proof should be such as to reasonably satisfy respondent requester qualified under Act -- Cannot be complete absence of evidence -- Although evidence sparse, Access Coordinator not wrong in deciding requesters fulfilled statutory qualifications -- (3) Recommendations for release submitted to Director of Access to Information, Deputy Minister, Minister -- "I approve the recommendation" appearing over Minister's signature on each application -- Decision-making authority retained by Minister under Access to Information Act Delegation Order -- Even though departmental officials examined requests and considered objections against release of information, decisions to grant or deny access made by Minister -- Common sense dictates Minister will be guided by officials, particularly Deputy Minister -- (4) Information contained in product monograph not confidential as widely distributed to health officials -- As to proposed release of information relating to drug submissions for Minocin, A.C.J. rejecting claim for exemption from disclosure under s. 20 -- Fact some information proposed to be disclosed consisting of "trade secrets" and other information treated by appellant and HPB as confidential as submitted to comply with Food and Drug Act not ipso facto exempting information from disclosure under Access to Information Act -- Respondent's submissions well-founded -- Proposing to release only information already in public domain -- Rights of secrecy and confidentiality falling away with release of product monograph -- No basis under s. 20 to interfere with orders -- Access to Information Act, R.S.C., 1985, c. A-1, ss. 4, 7(a), 9(1), 17, 20, 25, 27(1),(4), 28(1), 44, 68 -- Interpretation Act, R.S.C., 1985, c. I-23, s. 11 -- Food and Drugs Act, R.S.C., 1985, c. F-27 -- Access to Information Act Extension Order No.1., SOR/89-207, s. 2.